David Maraga floored ten candidates for the position of Chief Justice of Kenya to emerge triumphant after a week-long evaluation by the Judicial Service Commission.
His name is set to be forwarded to President Uhuru Kenyatta for approval before being presented in Parliament for vetting.
Maraga, who heads the Appeals Court in Kisumu County exhibited moments of nous, leaving the JSC and viewers who were following the proceedings awed.
When asked why he was convinced that he is the most qualified to succeed retired Chief Justice Dr Willy Mutunga, the 64-year-old said: “As a lawyer and as a judge, I have wide experience to enable me lead the Supreme Court into the development of jurisprudence.”
Maraga said he would fast-track the implementation of the legal aid act that ensures Kenyans seeking access to justice are not locked out due to inability to hire a lawyer.
“I think that is the right direction we should go because quite a number of people are suffering because they can’t get legal aid,” he said.
According to the CJ nominee, corruption, lack of sufficient funds and backlog are some of the challenges facing the judiciary today.
On same-sex marriage, Maraga said he would deal with such cases in accordance with the law; but also consider what is morally and culturally acceptable.
“Marriage is between a man and a woman. So I would go by those principles,” he stated.
Maraga observed there is need for amendment to election laws to ensure a magistrate’s decision is final for MCAs’ petition and cases heard before the High Court should end at the Court of Appeal. All this to ensure the Supreme Court only handles the presidential petitions.
“If the Parliament does not accept our proposal and amend the constitution, we are going to have those appeals going up to the Supreme Court. If we are going to say the election of an MP is a matter of national importance because he is an MP, we would go back to where we came from. The Supreme Court is just one bench. If you have all those matters coming there, you would have matters pending in court for two terms. There must be finality to litigation and, in my view, when you come to election matters the most we should allow is one right of appeal,” said Maraga.
A staunch Seventh Day Adventist, would Maraga hear cases filed at the Supreme Court on Saturdays?
“It would be difficult for me. I will talk with my colleagues to see how they can accommodate me, and even if it means we sit late and deal with that situation.”
When the law is not clear
Attorney General Prof. Githu Muigai enquired: “When a judge is met by a gap in the law or lack of clarity in the Constitution, to what set of tools should the judge turn to?”
Maraga’s response: “You look at the architecture of the constitution; the issues the Constitution seeks to address; the values that the Constitution is dealing with, and read it as a whole.”
Maraga was put to task to give the premises he would anchor his judgment on when a surrogate mother files a suit seeking to claim a baby from donor parents.
The CJ nominee said: “In this scenario, the interest of the child is paramount. It did not invite any of these parties to the duel they find themselves in. Then, follows the agreement between the donors and the surrogate. But again, what kind of contract is this? The issue is whether that contract is legal, whether or not it is against public policy.”
Euthanasia (assisted suicide)
AG Githu Muigai put Maraga to a more difficult task when he asked what would inform Maraga’s judgment when a patient in a vegetative condition demands that the life support be turned off – and the patient’s relatives and lawyers approved of it, but the hospital declined to grant the aggrieved parties their wish.
“You will have to consider whether or not it is legal in our country. Nonetheless, the constitution itself says life is sacred. Euthanasia is illegal in our country,” said Maraga.
Maraga was interviewed by the JSC on August 31, 2016 at the Supreme Court.